Case No COMP/M.4367 - APW / APSA / NORDIC CAPITAL / CAPIO
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EN Case No COMP/M.4367 - APW / APSA / NORDIC CAPITAL / CAPIO Only the English text is available and authentic. REGULATION (EC) No 139/2004 MERGER PROCEDURE Article 6(2) NON-OPPOSITION Date: 16/03/2007 In electronic form on the EUR-Lex website under document number 32007M4367 Office for Official Publications of the European Communities L-2985 Luxembourg COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 16.03.2007 SG-Greffe (2007) D201249 In the published version of this decision, some PUBLIC VERSION information has been omitted pursuant to Article 17(2) of Council Regulation (EC) No 139/2004 concerning non-disclosure of business secrets and other confidential information. The omissions are shown thus MERGER PROCEDURE […]. Where possible the information omitted has been ARTICLE 6(1)(b) AND 6(2) replaced by ranges of figures or a general description. DECISION To the notifying parties Dear Sirs, Subject: Case No COMP/M.4367 – APW/ Nordic Capital/ APSA/ Capio Notification of 26 January 2007 pursuant to Article 4 of Council Regulation No 139/20041 1. On 26 January 2007, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the Merger Regulation) under which Apax Partners Worldwide LLP (“APW”) acquires, together with Nordic Capital Fund VI (“Nordic Capital”) and Apax Partners SA (“APSA”), joint control over Capio AB (“Capio"). I. THE PARTIES 2. APW is a UK limited liability partnership which provides investment management and investment advisory services to private equity funds investing primarily in Europe in a range of industry sectors. APW currently controls amongst others General Healthcare Group Limited (“GHG”), a provider of private healthcare services in the UK2 and Mölnlycke Healthcare ("MHC”)3, a provider of amongst others surgical and wound care products to the professional healthcare sector. APW recently agreed to sell MHC to a consortium consisting of Cator Holding AB, Investor AB and Morgan Stanley Principal Investments, Inc. A sales and purchase agreement has been concluded on 25 January 20074 1 OJ L 24, 29.1.2004 p. 1. 2 See Case M.4229 APHL/ Netcare/ General Healthcare Group. 3 Case M. 3816 Apax/Mölnlycke. 4 The transaction has been notified to the Commission on 20 February 2007 and has been registered as Case M. 4579 Investor/ Morgan Stanly/Mölnlycke. Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11. 3. Nordic Capital, part of the Nordic Capital Group, is a Jersey-based private equity firm focussing its investments mainly on the Nordic region. Nordic Capital has amongst others shareholdings in pharmaceutical companies such as Nycomed and - through Nycomed5 - Altana Pharma AG (“Altana”), as well as Unomedial, a supplier of sterile single use medical devices and Atos Medical, a manufacturer of ear, nose and throat medical devises. 4. APSA is a French provider of investment management and investment advisory services to private equity funds investing in a range of industry sectors, primarily in France. Amongst others, APSA has joint control over the French hospital chain Vedici. 5. Capio is a Swedish provider of healthcare services for both public and private customers via its acute private hospitals, diagnostic centres and private psychiatric hospitals. It provides its services in a wide range of EEA Member States. II. THE OPERATION 6. The operation consists of a public bid for Capio by the parties, based on a joint bid agreement signed on 31 August 2006 and amended on 4 October 2006. The parties acquired the shares in Capio using an acquisition vehicle, Opica AB, […]. III. CONCENTRATION 7. Pursuant to a shareholders agreement of 31 August 2006, the board of Capio consists of seven directors, […]. Each of APW, Nordic Capital and APSA will however obtain veto rights concerning specific strategic decisions concerning Capio (e.g. the adoption of the business plan, changes in the board6). The transaction therefore leads to the acquisition of joint control by APW, Nordic Capital and APSA, within the meaning of Article 3(1)(b) of Council Regulation (EC) No 139/2004. IV. COMMUNITY DIMENSION 8. The combined aggregate worldwide turnover of the undertakings concerned is more than EUR 5 billion (APW EUR […] billion, Nordic Capital EUR […] billion, APSA EUR […] billion, Capio EUR […] billion). The aggregate Community-wide turnover of each of the undertakings concerned is more than EUR 250 million (APW EUR […] billion, Nordic Capital EUR […] billion, APSA […] EUR billion). Only APSA achieved more than two-thirds of its Community-wide turnover7 in one and the same Member State. The operation has therefore a Community dimension. V. RELEVANT MARKETS 5 Case M. 4418 Nycomed Group / Altana Pharma. 6 […]. 7 References to market shares and turnovers all refer to the year 2005 unless specifically stated otherwise. 2 A. Relevant product markets 9. The notified transaction results in horizontally affected markets in the UK. It concerns the overlaps between Capio and APW’s portfolio company GHG on the markets for private acute general hospitals and on the market for PPHO (public/private healthcare outsourcing services). 10. The vertically affected markets are linked to the activities of APW portfolio company MHC and Nordic Capital portfolio companies, Nycomed, Altana, Unomedial and Atos Medical, which are active upstream as suppliers of a wide variety of medical supplies (medical products and pharmaceutical products) to hospitals and providers of medical services downstream, such as Capio. The geographic markets concerned are the EEA8, Norway, Sweden, France, Spain, Germany and the UK. A.1 Horizontal overlap: downstream markets A.1.1. Market for private acute general hospitals 11. The parties submit that there is a market for private acute general hospitals, or, alternatively, a combined market for private/public acute general hospitals. According to the parties, it varies per Member State whether separate product markets can be identified. This view is largely confirmed by the market investigation and reflects the differences in the organisation of the national health care systems and the regulatory environments in the individual Member States. There is however a number of differences between private and public health care services. Whereas private healthcare is paid for by the patient, usually through insurance with a private medical insurer operating on a national basis, public healthcare is generally partly or entirely funded through taxation and requires either a limited contribution of the patient or is offered for free, at the point of service delivery. Private acute hospitals also differentiate themselves from public acute hospitals in terms of the overall patient experience, waiting lists, clinical outcomes and physical comfort. 12. Considering the fact that the situation concerning acute general hospitals may vary per Member State the definition of the relevant product market can be left open in the present case, since in all alternative definitions considered, effective competition is not significantly impeded in the EEA or any substantial part of that area, except for the UK. 13. As for the UK, the transaction does raise serious competition concerns, namely in relation to the market for private acute general hospitals. On this UK market, private acute general hospitals play an important role and respond to a specific demand for such services which is different from the demand for public acute general hospitals. This was confirmed by the market investigation. Therefore, there are good reasons to define a separate market for private acute general hospitals for the UK. A.1.2 Market for PPHO activities 8 Depending on the product and the definition of the related geographic market 3 14. In a number of Member States, Capio is active as a provider of healthcare services under contract with the national public healthcare provider (PPHO services), i.e. the UK, Sweden, Norway, Denmark and Spain. 15. The purchase of PPHO services by the public healthcare authority from the private healthcare provider is often based on a tender procedure or public procurement procedure and can therefore, according to the parties, be distinguished from the provision of private healthcare services procured by patients themselves or their healthcare insurers. In a previous Decision, the Commission distinguished a market for the supply of PPHO services in relation to the UK, where such services are provided in the context of the NHS procurement programmes (Independent Sector Treatment Centres (“ISTCs”)) in which both Capio and GHG are active. However, it left the market definition open9. The market investigation largely confirmed the identification of a separate product market for PPHO services. In any event in the present case, the market definition can be left open, since in all alternative definitions considered, effective competition is not significantly impeded in the EEA or any substantial part of that area. A.2 Vertical overlap: upstream markets 16. The notified transaction leads to a large number of vertically affected markets. These markets concern the relationship between the private acute general hospitals chain Capio, downstream, and the providers of medical supplies upstream (MHC, Nycomed, Altana, Unomedial and Atos Medical). 17. The vertically affected upstream markets can be split in five major groups of product markets: i) surgical products, ii) wound care products, iii) pharmaceutical products, iv) sterile single-use medical devices and v) ear, nose, throat medical devices. A.2.1 Surgical products 18. APW, through MHC is active in a number of markets upstream from Capio's activities. MHC is a supplier of surgical products. In previous decisions the Commission has split the market for surgical products in a number of sub-markets. In the present case, this split results in vertically affected markets for surgical textiles, surgical gloves and antiseptics10. 19. The market for surgical textiles may be split in further sub-markets. In the present case this would result in vertically affected markets for drapes, gowns, caps, masks, swabs, and scrub suits.